22 Jan 1948_A_MSD_16_1_Mills (Juelich) (The hearing reconvened at 1415 hours)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: There may be a slight modification in the schedule as announced this morning so that we will now again go over the same ground and indicate specifically what we hope to have from the defense counsel. Dr. Aschenauer will deliver his summation on Saturday, January 31. He will have the entire day for the presentation of his final speech. In view of the fact that he intends to cover, on behalf of many of the defendants, certain legal problems, it is only fair that he should be allowed ample opportunity to develop those legal propositions and thus he will have that entire day. He has promised to have his manuscript in the hands of the translator in ample time so that the Tribunal will have the English version before it on the morning of January 31. The other defense counsel will take up their summations beginning with the morning of Monday, February 2. Since we are naturally always confronted with the translation problem, it is obvious that those manuscripts must be presented for translation in ample time before February 2 so that they may be translated in time. Defense counsel, therefore, are advised that they should have their summation speeches, in German, in the hands of Major Hodges in room 106, no later than the morning of Friday, January 30. Those who can complete their speeches before that time will naturally help everybody concerned if they will deliver their manuscripts to Major Hodges bofore the 30th. But no one should submit it later than the morning of January 30 in room 106, Take it directly to Major Hodges and not to any other office, because he will see that the translation is done immediately. If there is no comment from defense counsel on that point we assume that that will be satisfactory. Dr. Aschenauer submitted a subject for discussion which we have no hesitancy in touch upon. He expressed the apprehension, which I think is shared by attornies throughout the world, that if a speech is delivered and then it is followed by a 23 Jan 1948_A_MSD_16_2_Mills (Juelich) speech from the other side, that the first speech's effect is dissipated in the oratory and eloquence of the succeeding speech.
That is a matter of psychology and a matter of opinion. If the speech delivered on one side is good, effective, and convincing, the deliverer of that speech does not need to be concerned that when his opponent gets up to talk that the effect of his arguments will be forgotten or lost. We only mention this because, as the schedule works out, the prosecution will follow the speeches of the defendants. In other cases it has happened that the prosecution made the first closing statement. He rule was laid down in this case as to who should be first and who should be last. It just developed in these closing days that in order to meet all deadlines, that it might be well if Dr. A chenauer and the other defense counsel followed, and then Mr. Ferencz and prosecution counsel will conclude the arguments. But no one need to fear that merely because the prosecution will deliver the last speech, that that in any way is going to cause the Tribunal not to give the fullest weight, thought, and solemn consideration to what proceeded the final summation speech by the prosecution. Then again, it isn't the prosecution which has the last word in this controversy between two sides, if we want to term it as such, because under the Charter and the law which controls the procedure of this Tribunal, the defendants themselves make the final statements. Is there any comment from either side on that point?
DR. GAWLIK (Counsel for Naumann and Seibert): Your Honor, I am fully convinced that the Tribunal will weigh the speeches independently of the fact who speaks first and who speaks last. But in spite of that, as a defense counsel, I have considerable misgivings if the prosecution should speak after the defense. As far as I know in most legal procedures it is such that the prosecution speaks first and then the defense. The word defense means this because I can only defend myself against something if I am attacked first, and the attack is launched by the prosecution here, and it does not depend on the psychological 22 Jan 1948_A_MSD_16_3_Mills (Juelich) effect, but I have to have an opportunity, if the prosecution should state any incorrectnesses in their final summation which I shall have to correct, and I have to discuss them and I shall not have that opportunity if I have to speak first.
and the prosecution speaks after me. While, if it is the other way around the prosecution has the advantage because the prosecution can answer to my final summation and discuss the various points and give their opinions on it. and I shall be unable to do so, to refute statements made by the prosecution. Therefore I would consider it more correct if the prosecution spoke first so that we should have an opportunity to hear what weight the prosecution factually and physically will give it.
THE PRESIDENT: I don't know what the procedure is according to German law, but in all Anglo-American courts, the prosecution speaks last and the reason for that is that the prosecution has the burden of proof. According to Anglo-American law, the defendant is presumed innocent until proven guilty. The prosecution has the burden of showing beyond a reasonable doubt, that the defendant is guilty. So that the procedure in the English speaking countries is that way that the prosecution speaks last. However that was not the reason that the prosecution was scheduled to speak last in this trial. A I indicated before it was more a matter of accident than anything else, because in the Pohl case where Judge Speight and I say, the prosecution spoke first and it has happened, it's only a matter of arrangements and convenience, as to who speaks first and who speaks last and if you allow one side to answer the other side, each time one side finished there can never be an end to a controversy. because there will always be another word to be said. Certainly every attorney, by this time, has formulated, in his mind, just what he is going to say -- what his defense is, and he doesn't need to have the prosecution tell him at this late date what he is being charged with. I don't see this great psychological advantage, Dr. Gawlik, and certainly no legal advantage, in speaking after the prosecution.
22 Jan 1948_A_MSD_16_4_Mills (Juelich)
DR. GAWLIK: May I say the following to this, your Honor, According to German legal procedure the prosecution speaks first and then the defense. Buat apart from this I would like you to consider this point of view. In all trials which took place here before all Tribunals, the prosecution has spoken first and in all cases the prosecution has applied that they might be allowed to speak last. Until now this has always been refused, and we found that in the final summation the matter is described differently by the prosecution than has been shown in their cse in chief and also was given different weight, from a legal point of view. That is why we think it necessary that we be given an opportunity to comment in someway or other to the final summation by the prosecution, and I don't know, your Honor, why the prosecution whould want to speak here last -- whether there are technical reasons or -
THE PRESIDENT: Well, the only reason is, their burden, as you will admit, is a greater one than the derense's, not only legally, but factually and physically. You have twenty-two lawyers, each lawyer concerned only with one client, whereas the prosecution, made up of four lawyers, must consider twenty-two defendants. From a physical point of view they have more work to do and that is the only reason which has been advanced to the Tribunal and which the Tribunal considered in allowing the prosecution to follow. And it is impossible, in any event, for either side to construct its argument at the last moment, because we have these technical things to consider. Where you speak extemporaneously I can understand some slight psychological advantage, perhaps, in following another speaker because you may pick up some argument which he has made and immediately conjure up a reply. But here your speech has to be written out, must be typewritten, it must be translated, it must be mimeographed, all this before it's delivered. So that even if you immediately followed the prosecution you still wouldn't have an opportunity to go through all those features in the preparation of your defense.
DR. GAWLIK: Certainly, Your Honor, we always had that opportunity until now, even if we handed in our final summation before, we always had that opportunity to add into our summation one, two or three sentences after an agreement of interpreter, in order to discuss some problem which had only been raised owing to some submission by the Prosecution.
THE PRESIDENT: Mr. Ferencz, will you please come to the podium, please. What is your situation from a factual point of view about getting a summation ready.
HR. FERENCZ: Your Honor, there are several considerations in the mind of the prosecution. First, I would like to reply to some statements made by Dr. Gawlik, which I regard as not quite accurate. In the case of the International Military Tribunal, the Prosecution did speak last, and the uniform rules, of procedure as first laid down by all of the Tribunals provided that the Prosecution would speak last. The present rule of procedure as amended, makes the matter come completely within the discretion of the Tribunal. Actually our position is well described by the Tribunal, we are all quite busy trying to get the closing briefs in, in time, so that the defense counsel may have those. He would welcome very strongly to have an additional week in which to prepare our closing statements. It is simply a matter of time so that we may do a thorough job. Of course, we are not going to introduce in our closing statements anything which is not now before all of the defense counsel. They know our position completely two days after we began the case, and closed the case, that was four months ago, and I, therefore, don't feel much impressed by their argument that they are now going to be taken by surprise by something we are going to say.
THE PRESIDENT: DR. Gawlik, you said that in previous trials the Prosecution spoke first. You were in the IMT trial, who spoke last?
DR: GAWLIK: The IMT was different because that was an International Military Trial where a different procedure was applied. The procedure which was determined for these trials, like in Tribunal No. I, the Doctors' trial, there the Prosecution spoke first.
In the Pohl trial, the Prose cution spoke first.
In the Judges' trial I think the Prosecution also spoke first, and also in the Flick trial, sofar as I heard.
THE PRESIDENT: well, your main point seems to be, Dr. Gawlik, that even though you must prepare your speech, as of course, you must, several days before delivery, that it could happen if you followed the Prosecution, that you could extemporaneously introduce two or three sentences or statements in reply to the Prosecution, something which you could not have anticipated when you wrote out your speech beforehand.
DR. GAWLIK: Yes.
THE PRESIDENT: In accordance with the policy which we have attempted so strenuously to follow throughout this trial, of giving the defense every opportunity, suppose we make this suggestion, which will certainly be novel and unique, and sofar as I know never yet done in these trials, but does not concern us if something is new, if it is effective and if it is just. If after the Prosecution finishes -- and I know the Prosecution is not going to be very happy about this suggestion, and maybe they might be because they also have been very fair -- if after the Prosecution completes their argument, any defense counsel feels that some undue advantage has been taken of him by some novel twisting of the facts, or of the law, has been presented by the Prosecution, to which defense counsel whould reply, defense counsel may get up a make a very brief statement; he will have to extemproize of course, because We won't have the time, naturally, to wait for any written presentation. So in that way, it Can not be said, you will be taken advantage of, because your lips will be scaled, after you will have made your closing statement. Pardon me.
MR. FERENCZ: Your Honor, the rules provide that the defendants' will address the Tribunal and make a statement, that is, the last word, so the Prosecution actually does not have the final statement, and I am afraid that if we allow defense counsel to get up and make a second closing statement, we will have twenty-three closing statements half as long as the first, and be here for another week.
If the defendants feel that we have suddenly pulled something very surprising on them and put it into our closing statement, they themselves are able to answer it, and we will have the last word with the Tribunal, and we don't see any necessity for giving the defense counsel the opportunity to be heard twice on the same subject, and then the defendants on the some subject.
THE PRESIDENT: Dr. Gawlik, I am sure this will meet with your approval: After the Prosecution will have completed its summation, all of defense counsel will certainly know whether anything strikingly new has been presented to which a reply must be made, because it has not been covered by any of the twenty-two defense counsel. One of defense counsel will be permitted -- this is a suggestion we are making, or the thought we are presenting -- one of defense counsel will be allowed, let's say a matter of ten, fifteen or twenty minutes to reply on behalf of all of defense counsel to any particular thing which may be advanced in the Prosecution's speech, which has not already been covered in the twentytwo defense speeches.
DR. GAWLIK: I believe, Your Honor, if I may state my opinion, that the last suggestion is not practical in the interest of the defense, if we as defense counsel want to realize our rights, as it is our duty, only the defense counsel of each defendant concerned knows the subject and the discussion that is proper, and it is impossible for one of my colleagues to fully realize all the problems concerning all twenty-three defendants in such a manner as it should be our duty as defense counsel. On the other hand I do not see why the Prosecution objects to the first suggestion made by the Tribunal; we realize that there is a lack of time, but please consider, Your Honor, this lack of time is only a matter of one week. It is only one week, and that this not be used to the disadvantage of the defendants, so that no opportunity exists that anything be brought to the knowledge of the Tribunal which we as defense counsel consider our duty.
I would like to add the following. Your Honor, although if we should speak for a second time to ready to a summation of the Prosecution, it will not be the same affect which would exist if we could do this as part of our final summation. If we base our final summation on conclusions by which we went to refute statements of the Prosecution, then our speech will be much more convincing, but in spite of this, because I realize the lack of time. I think I can say for myself, I don't want to say anything for my colleagues, if each one of us will be given sufficient opportunity to reply to a speech by the Prosecution, I think I can say, for my part, I agree. How my colleagues think about it, I don't know, but I think the last suggestion, that one should speak for all defendants within fifteen to twenty minutes, I think that is not practical, if I may express my opinion in this case.
DR. LUMMERT: Dr. Lummert for the defendant Blume. I would like to follow the request of my Gawlik, that the first suggestion made by Your Honor should be chosen as the final decision. I am not convinced that but a very few defense counsel will avail themselves of the opporttunity of speaking for a second time, but I think it would be better if we be given this opportunity.
THE PRESIDENT: Dr. Gawlik, the procedure an English-speaking countries is that the prosecution has the first speech and the last speech too just because it does have the burden of proof. Now are effect we are being asked to reverse then procedure completely, that you have the first and the last speech, the defense, but we are not disinclined to grant that request. just because, as we have indicated throughout this entire trial. that the defense shall have every opportunity imaginable, to present its case because a serious issue is involved here, as you and your fellow counsel well know, Now, within the limits of reason, after the prosecution has finished, any counsel who feels that he has not had an opportunity to consider a certain proposition advanced by the prosecution in his, the defense counsel's, closing speech, will be given an opportunity to say a few words with regard to that new matter, Naturally, he may not get up and repeat what he said in his first speech just because it has been denied in the prosecution's speech, because it is quite obvious that that is merely a repetition of the same matter. But if something new, novel, unique has been presented, or if you think some unfair advantage has been taken in the matter of presentation of argument, we will allow defense counsel to reply to that. We assume that all defense counsel, if they should all avail themselves of that privilege, would not consume more than a matter of a couple hours' time.
DR. GAWLIK: Thank you, Your Honor, may I make another request? Perhaps a deadline could be fixed by what time the prosecution will have to give their closing briefs to us so that we at least will have opportunity to respond to these closing briefs.
THE PRESIDENT: Yes. Now on the matter of closing briefs, Dr. Gawlik, again we come to the matter of understanding the purpose of any particular act in legal procedure. What is the object of a trial brief? The object of a brief is to allow the attorney to analyze his Own testimony, testimony of his own client and all the evidence presented by him or against him, and indicate to the Tribunal his point of view.
It doesn't depend upon what the other side says in their brief, because they themselves must do the same thing. The object of a trial brief is not to reply to the trial brief of the other side but to present your case in as favorable a manner as possible. that the opposing side will have an opportunity of glancing at the brief before preparing its own brief, but there can't be any guarantee that those briefs will be ready in time so that they can always be replying. Otherwise this goes on indefinitely. You realize the mechanical obstacles that are presented each time a document has to be presented, so that all we can say is that every attorney involved in this case, on the prosecution side and on the defense side, should work on his brief and get it in as quickly as possible. Since the summation will have ended by February 7 and then the Tribunal immediately goes into deliberation on the case, it is obvious that if the briefs come in very late that they cannot be given that solemn and deliberate consideration which they are entitled to receive and which they would receive if they were submitted in time. So defense counsel makes a big mistake in waiting for the prosecution trial brief in order to prepare his own trial brief. to defense counsel, but others are not.
DR. GAWLIK: But, your Honor, it isn't like this, that we are waiting in writing our final summations until we get the trial brief of the prosecution: but everyone of us has the duty only to hand in the final summation after having read the trial brief of the prosecution, and apart from that it would be unfair treatment if some defendants get the trial briefs in time and the defense counsel can consider it in their statements and other defendants do not get them. And I shall state this, according to experience I had with the previous trials, some of us got the trial briefs after we had made our final summation.
In the Pohl trial, for example, the prosecution submitted a trial brief. The Tribunal did not accept it any more since it was handed in after the final evidence and the final summation had been presented. During that recess we received trial briefs That is why I would think it more expedient if I may make the suggestion your Honor, that the prosecution give us their trial brief by at least one or two days before we have to hand in our final summations so that all defendants are being treated in the same manner, in this respect too.
HR. FERENCZ: Your Honor, in order for us not to be confused by all this double talk, I think at is important to take a look at the total picture of what the defense have been given and what they are being given now before we can judge whether the request being made is fair or not. You will recall the prosecution completed its case in two days. For four months the defendants have been allowed to bring in here anybody they wanted as witnesses, to offer such documents and such testimony as they regarded in any way connected with this case. All of it has been admitted. They have just been given the right to speak first and last in their closing statements, not only last once, but last twice. After the defense counsel has spoken the defendant will get up and speka. Now they ask that we give them our closing briefs before they prepare their closing statements. Your Honors know that the complete defense case is not yet in and that the prosecution went ahead with their rebuttal case before the defense had completed. This is a highly unusual procedure. We would have the right in any court to say we will not submit our closing briefs until the defense has closed their case. This the defense has not yet done nor have they indicated any intention of doing it within the next week or so, In view of every action which has been taken on the part of the court, and of the prosecution, it seems an affront for the defense to come in and say, "We cannot prepare our closing statement until we see now the prosecution views the case from their side."
Our closing statement has nothing to do with how they view the case. We are presenting our summary of the evidence which has been in few weeks and months. They are at perfect liberty to do it now. They have been at liberty to prepare it since we closed our case, and one has no connection with the other. to putting our statements in within the next five says, It would be almost impossible. But I believe that all the other reasons given make it necessary for us to view this thing as one unit and one whole in determining whether it is fair or not to require the defendants to make their statements regardless of whether we have our closing briefs in or not.
THE PRESIDENT: Well, Dr. Gawlik, I don't think you need fear that any undue advantage will be taken of your client or of any other defendant in this case because of any mechanical situation which arises and which cannot be met regardless of all the will in the world. You see that these trial briefs can't be handed to you in bulk on one day. They necessarily must be prepared and piecemeal put through the mill. They will be prepared translated, mimeographed, just as quickly as it is humanly possible to do so, and I am positive in my mind, and I am sure that I speak for my colleagues, that every defense counsel can well prepare his closing speech without waiting for that trial brief, which after all is not an anticipatory summation speech but something which is only an analysis of the testimony and an application of the law involved.
All trial briefs should be in by February 7th. If any defense counsel feels that he has not had the fullest opportunity to present whatever he intends to present and whatever is vital in the case, the doors of this Tribunal are always open. They will be open up to the very last moment, until the decision is read, and when it comes to a matter of justice, the courts are open at all times, even after the decision is delivered.
Who is ready now to present document books?
MR. HORLICK-HOCHWALD: If the Tribunal please, the Prosecution is ready to present Document Book No. IV. As I have told the Tribunal already two days ago, this is a document book which contains evidence in connection with the case of the defendant Rasch. I only want to put the documents in without commenting on them that they may have prosecution exhibit numbers.
The first document I offer is NO-5120 as Prosecution's Exhibit 243 on page 1 of the document book. On page 3 of the document book is Document NO-1076 which is offered as Prosecution's Exhibit 244. On page 11, Document NO-1074 offered as Prosecution's Exhibit 245. On page 16 Document No-1073 offered as Prosecution's Exhibit 246. On page 20 Exhibit NO-1075offered as Prosecution's Exhibit 247. On page 22, Document NO-1069 offered as Prosecution's Exhibit 248, and the last document on page 24, Document NO-1071 offered as Prosecution's Exhibit 249. That will be the complete document book. Document Book III of the Defendant Rasch - of the defendant Haensch - I beg the Tribunal's pardon - but I don't know whether his counsel is ready to present the document book, but I just heard now that the defense counsel for defendant Jost is ready to present his.
THE PRESIDENT: Yes. Well, then suppose we do that immediately after the recess?
Do you have something, Mr. Glancy?
MR. GLANCY: It is merely to inform the Tribunal the twenty-four hour rule was not met in the case of Book No. III. However, for expediency's sake, the Prosecution will waive and allow its presentation.
THE PRESIDENT: Yes, I am glad that you do.
DR. FICHT: Ficht for Biberstein. will rule about the objections which were raised by the prosecution and by the defense against the documents?
THE PRESIDENT: we will rule on those objections when we reconvene after the present recess, or perhaps at the end of the day when we will have heard the other objections which will probably be advanced to the documents which are to be presented during the remainder of the day.
(A recess was taken.)
(The hearing reconvened at 1530 hours.)
THE MARSHAL: The Tribunal is again in session;
DR. WIESMATH: Wiesmath, assistant for Dr. Schwarz, for the defendant, Jost. With the permission of the Tribunal, I shall submit Document Book III for the defendant, Jost. marie Jost, dated 21 October 1947, and certified on the 4th of December 1947. It comprises pages 1 to 6 of the third document book. Its contents are as follows, "Jost's critical attitude towards the party, his character, his attitude to the Jewish problem, his attitude with regard to Heydrich's execution orders, his rejection of Lohse's suggestion of making the Eastern territories free of Jews." I would like to draw the Tribunal's attention to the fact that Mrs. Annemarie Jost from May 1942 to September 1942 was herself in Riga. Her testimony about events during this time was based so to speak on her own personal knowledge and, therefore, is of special probative value. dated the 10th of December 1947, comprising pages 7 to 9 of Document Book III, "Contents: Responsibility of Jeckeln for executions. Lohse's policy in the Jewish problem. the 10th of December 1947, pages 10 to 13 of this volume, "Contents: Reports by the Einsatzgruppen, Einsatzkommandos, of the commander of the Security Police and SD." About the translation, I would like to say here "Commander of the Security Police and SD" should be translated, "Commander in Chief of the Security Police and SD". I continue in the index, "Reports of the Commanders of the Security Police and SC channel of command with regard to the Commander of the Security Police and SD", and here again I ask that it be translated "Commander in Chief of the Commanders of the Security Police and SD". The position of the Reich Commissioner for the Eastern territories and of the Generalkommissare, power to issue orders to the Commander of the Security Police and SD, or rather Commander in Chief of the Security Police and SD, and to the Commander of the Security Police and SD.
Activity of the Commander in Chief of the Security Police and SD in the Eastern territories."
As Exhibit Number 29, I offer Document J 29. This is a diagram which is offered as a supplement to the statements of the defendant, Jost, on the witness stand and which shows the position of the Commander in Chief of the Security Police and SD in the East. In the English translation of this first diagram, I have discovered that two completely different agencies have been translated with the same term, I mean here, the Commander of the Security Police and SD Eastland, and the Commander in Chief of the Security Police and Commander of the Security Police and SD. I have already suggested that the first be translated, "by Commander in Chief of the Security Police and SD". Furthermore, this diagram has suffered in clarity by being compressed, I, therefore, intend to make up a new diagram in English, and I ask the Tribunal for their kind permission to offer a photostat of the diagram to be made up new and to offer this later.
As Exhibit Number 30 I offer Document J 30 as Diagram Number 2. This diagram pictures the position of Einsatzgruppe A. The defendant, Jost, has made lengthy statements about this during his direct examination. 29th of December 1947, pages 16 to 21 of the third volume. "Contents: Jost's activity in the capacity as Head of Worms Police Headquarters. Rejection of interferences by the party, Jost's intervention on behalf of Dr. Rahn. The objective manner in which Jost conducted his office, and his popularity with the subordinates. Release of Parson Degen from detention."
Document J 32 is an, excerpt from the newspaper "Der Tagesspiegel" which concerns the abolishment of the death penalty by Russia, one of the signatory powers of the Control Council law, I shall skip this, since a document concerning the same or including the same content has already been submitted on behalf of Dr. Braune by my colleague, Dr. Stubinger.
As Exhibit Number 32, I submit Document J 33. This is a supplementary excerpt to the Document NO 3277 which was submitted by the prosecution in excerpt. This is in Document Book IIA, English page 133, Exhibit Number 56. This excerpt from the document, or rather this supplementary excerpt from this document is to prove that the events described in this document are supposed to have taken place in March 1942, that is, before the time that Jost started his job and before Jost's responsibility started.
This concludes the presentation of the third volume. The fourth volume is unfortunately not yet available in the English translation.
MR. GLANCY: The prosecution has no formal objections to register, Your Honor, except for the fact that it requests that the J 32 be stricken from the books as being entirely irrelevant. It is my understanding that it was not offered by Jost's representative.
PRESIDENT: The motion is granted, and that will be stricken from the record because it has absolutely no relevancy to the issued involved.
MR. GLANCY: Thank you, Your Honor.
DR. KOHR: Kohr representing Dr. Heim for the defendant, Blobel. I would like to submit the supplement to document book II for Blobel, This is only one document, but there might be one difficulty, the Tribunal may not have the English copy yet, but I am in a position to furnish the Tribunal with the copies which I have already received yesterday.
PRESIDENT: Do you have them there?
DR. KOHR: I have them here, Yes.
PRESIDENT: Let's have them.
DR. KOHR: I now offer Blobel's Document Number 12 as Exhibit Number 11. This is an affidavit of Walter Ostermann, dated 23rd of December 1947. Ostermann was a driver in the SD sector, Duesseldorf. That was at a time when Blobel was commander of the SD sector in Duesseldorf. Outside of that, he was in the Special Commando 4A from June 1941 until approx imately November 1942.
He was in charge of the motor pool of Special Commando 4A. This affidavit concerns itself primarily with a character testimony. Apart from that, it confirms that during his assignment in the East Blobel was frequently ill, and it confirms the statements about the time periods which Blobel made in the witness stand.
Your Honor, this would be the end of my presentation. I don't intend to submit any further documents on Blobel.
PRESIDENT: Very well. Any other documents ready for prsentation? Neumann?
DR.DURCHHOLZ: Durchholz for Schulz. Your Honor, I have my Document Book IV in German, the English translation has also been completed and is just being mimeographed, It is only a matter of 8 documents, and if I may nevertheless submit them, I would be grateful to the Tribunal. Dr. Hochwald has no objections.
MR. HOCHWALD: If the Tribunal please, I have seen the German text. I have no objections to Dr. Durchholz' offering the document book, but in order to be completely clear, I have objections against some of the documents.
PRESIDENT: Yes. We would be entirely willing to receive the documents now, even though we don't have the English version before us. That can be submitted later.
MR. HOCHWALD: It is perfectly all right.
DR. DURCHHOLZ: My Document Book IV, Your Honor, consists of 8 documents. I shall submit them in the order in which they appear in the document book. On page 260 we have Document Number 89, which I submit as Exhibit Number 88. This is an affidavit of the defendant, Schulz of the 10th of January 1948. In this he comments on a newspaper article in the "Moravian Journal" of the 23rd of March 1939 in Ulmitz. The complete copy of the paper is in the original document. This newspaper article, despite some contradictions on the part of German agencies, Schulz was successful in having it published. Dr. Benndar, the former Czech police president of Olmuetz, when Schulz had to take over the police office there, was not arrested by Schulz even though his arrest had been ordered.
Schulz did not do this. It was his consideration that in the case of Dr. Benndar, there was no reason for an arrest because the latter merely carried out the orders of his superior Czech officials as was his duty, and then this newspaper article is supposed to serve to confirm the statements of the defendant in the witness stand.
MR. HOCHWALD: If the Tribunal please, there is no objection on the part of the prosecution against these documents. I would only like to reserve the right to put in one of the other documents, at the utmost, one or two, of the evidence of the defendant, Schulz in Czechoslovakia.
PRESIDENT: You mean-
MR. HOCHWALD: As a rebuttal document.
22 Jan 1948_A_MSD_22_1_Mills (Lea)
DR. DURCHHOLZ: The next document is on page 263 -- this is document number 90 which I submit as Exhibit dumber 89. This is a mutual affidavit of Gerhilde Fleck and Dorothea Leitzinger, both from the city of Graz, of 3 December 1947. These two affiants were employees of the then office of the defendant in Graz in the year 1938, and they confirm, without being asked to do so, that Shulz was an excellent superior who only acted objectively and justly and who, in all official conferences, demanded a likewise conduct on the part of all employees. The next document is on page 265, Document Number 91, which I submit as Exhibit Number 90. This is an affidavit of Dr. Horst Hellauer, from Graz, of 30 November 1947. Dr. Hellauer Was, in the year 1938, a research collaborator of the Nobel prize winner, the Jewish counselor, Prof. Dr. Otto Loewy, who had been arrested before Schulz arrived there. He confirms that Dr. Loewy was correctly treated during his detention; that Schulz permitted this Dr. Hellauer to speak to this Dr. Loewy in prison without supervision, and that Schulz released Dr. Loewy after a few days. He continues that Dr. Loewy had told him that during his last interrogation before the Chief of the Gestapo in Graz, he had gained the impression that special importance was placed on his person and that they did not want to lose his work.
DR. HOCHWALD: If the Tribunal please, this last document presented by Dr. Durchholz I object to for only one reason. Dr. Durchholz presents as his next document an affidavit of Dr. Loewy who is the subject about whom all the time is spoken in this document, number 91. It is not understandable, and I do not think admissible, that a third affiant speaks about that what happened to the second affiant, if the name and the address of the second affiant is known to defense counsel, and if he obtained an affidavit from this man. I do think the correct way would have been that Dr. Loewy himself would have certified or would have executed an affidavit to the facts which are told to us by a third person.
THE PRESIDENT: You think that this is hearsay twice removed?